Beverley McLachlin, Chief Justice of the Supreme Court of Canada. The Tsilhqot’in did not seek a declaration of aboriginal title over (small amounts of) privately owned land in the case, she noted.

Photograph by: FRED CHARTRAND
, THE CANADIAN PRESS

VICTORIA — When the Supreme Court of Canada brought down the landmark decision in favour of aboriginal title last week, non-native British Columbians must have wondered about the impact on private land, including any of their own.

The short answer was that private land was not at issue in the title case brought by the Tsilhqot’in people.

A small portion of the territory covered by their claim did consist of privately owned land but “no declaration of aboriginal title over these lands is sought before this court,” as Chief Justice Beverley McLachlin noted.

Thus her decision, recognizing Tsilhqot’in title over some 1,750 square kilometres of land in the central Interior, didn’t affect the status of private land one way or the other.

Emphasis on “one way or the other.” Because the status of private land is at issue in claims of aboriginal title, including this case in the initial round before B.C. Supreme Court Justice David Vickers.

Vickers weighed the fate of “a number of private lots and other private interests within the claim area” including land held in “fee simple title, range agreements, water licences and other interests derived from the province.” Some of the aforementioned property was granted by the provincial Crown to “non-Tsilhqot’in persons.”

He was prompted to rule on the status of those private holdings by the Tsilhqot’in, whose pleadings left no doubt in the judge’s mind about what was and was not part of their claim: “Private lands are included and the holders of such tenures could take no more than what the Crown had to offer, namely, land burdened with Tsilhqot’in aboriginal title.”

The province, too, had drawn attention to the private holdings of non-Tsilhqot’in people, leading the judge to question the motive for doing so: “Though not framed as such, the province appears to be making a veiled attempt to argue that the granting of fee simple title has extinguished aboriginal title to these privately held lands.”

After assessing the arguments, Vickers sidestepped a definitive ruling for technical reasons. The Tsilhqot’in action was grounded in a challenge to the provincial Forest Act. The aforementioned lands and other interests came under other legislation.

“In this case the only infringements pleaded are those infringements raised by the forestry legislation and activities conducted pursuant to that legislation,” he wrote in his 2007 decision on the case. “That legislation does not regulate activities on private lands and accordingly there is no plea of an infringement on any private lands in the claim area.”

Not to say the Tsilhqot’in position had no merit. “It may well be that the transfer of a fee simple title, the granting of a grazing permit or a water licence or any other interest from British Columbia to others would all be infringements of aboriginal rights,” Vickers speculated.

For as he went on to note — and notwithstanding what he took to be the provincial argument for extinguishment — only the federal government has the constitutional authority to extinguish aboriginal title.

“Given that the jurisdiction to extinguish has only ever been held by the federal government, the province cannot and has not extinguished these rights by a conveyance of fee simple title to lands within the claim area,” wrote Vickers. “Thus, regardless of the private interests in the claim area (whether they are fee simple title, range agreements, water licences, or any other interests derived from the province), those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in aboriginal title.”

With the high court endorsing numerous other aspects of Vickers’ decision in the case, one has to think that is a plausible reading as well. But as Vickers, who died in 2009, went on to note, it remains for another court to sort out the specific relationship between aboriginal title and private land.

“What is not clear from the jurisprudence are the consequences of underlying aboriginal rights, including aboriginal title, on the various private interests that exist in the claim area ... their existence may have some impact on the application or exercise of this aboriginal rights,” he wrote. “Reconciliation of competing interests will be dependent on a variety of factors, including the nature of the interests, the circumstances surrounding the transfer of the interests, the length of the tenure, and the existing land use. Such a task has not been assigned to this Court by the issues raised in the pleadings.”

The Tsilhqot’in seized on the technicality to waive any further suggestion that private interests be incorporated in their claim.

“Private lands are not at issue in this proceeding,” said the First Nation submission to the high court. “The trial judge held that he was unable to make a declaration of aboriginal title in relation to private lands ... on the grounds that no infringements to such lands had been pleaded. The appellant does not take issue with that ruling.”

The amount of land was minuscule in relation to the broader claim and the waiver was without prejudice to future actions. Nor would First Nations in less remote parts of the province, where much more land is encumbered by private title and tenures, necessarily take the same approach.

As more than one observer has noted in the past week, private property is usually off the table in aboriginal land claims. Except when it is front and centre.

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